SONIC ELECTROCHEM P LTD Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE short question that arises for consideration in this writ application is whether mosquito repellant mat is covered by the entry "pesticides" and is, therefore, an exempted item under the notification issued under section 6 of the Orissa Sales Tax Act, 1947 (hereinafter referred to as "the Act" ).

(2.) THE petitioner is a manufacturer of a product commercially known as "mosquito repellant mat" under the trade name "jet" which contains "de-Allethrin 4 per cent". The goods are manufactured at Indore in the State of Madhya Pradesh and are despatched to Orissa where the petitioner is a registered dealer under section 9a of the Act. With effect from April 5, 1986, "pesticides" were notified to be exempted from levy of sales tax by the State Government in exercise of power under section 6 of the Act. The petitioner while submitting returns for the periods 1989-90, 1990-91 and quarter ending June, 1990, neither collected any sales tax nor paid any Orissa sales tax in respect of the goods and the Sales Tax Officer completed the assessment for the year 1989-90 under section 12 (4) of the Act accepting the petitioner's turnover as well as accepting the petitioner's claim that mosquito repellant mat is tax-free. But on the basis of a report of the intelligence wing of the department, notice was issued under section 12 (8) of the Act in respect of the period 1989-90 to the effect that the mosquito repellant containing 4 per cent. de-Allethrin is an "insecticide" and not a "pesticide" which alone is exempted under the notification issued by the State Government and, therefore, the sale of the same is liable to levy of sales tax. The petitioner raised a contention that the article is nothing but "pesticide" but that contention was rejected and final order was passed making assessment, against which the petitioner carried an appeal, but the appeal has been dismissed. For the year 1990-91 a similar notice was issued by the Sales Tax Officer purporting to be one under section 12 (8) of the Act. The petitioner objected to the same on the ground that the assessment has been completed by imposing tax at 12 per cent. on Jet mat and, therefore, the notice for reopening is erroneous and that matter was pending till the filing of the present writ application. So far as the present writ application is concerned, it arises out of the proceeding for assessment year 1991-92. In respect of assessment year 1991-92, notice was issued to the petitioner who appeared before the assessing officer and prayed for time. Though certain adjournments had been granted, but no further adjournment was granted on November 17, 1992 and prayer for adjournment having been refused, the assessing officer passed an ex parte order on November 17, 1992. The assessing officer came to hold that though the dealer claimed deduction towards sale of mosquito mats (repellants) which the dealer treats as an item free of tax, but mosquito repellant is "insecticide" and is subject to tax at the rate of 12 per cent. He also held that for earlier year 1990-91, the assessee had been so taxed and that assessment has been confirmed by the appellate authority. Accordingly, he determined the gross turnover and taxable turnover and called upon the assessee to pay the balance amount of tax of Rs. 2,43,548. 18. The said order of the assessing officer is annexed as annexure 4.

(3.) IN this view of the matter, the short question that arises for consideration is whether "pesticide" being exempted from levy of sales tax by the notification issued under section 6 of the Act, an "insecticide" will come within the purview of the same. Before examining the aforesaid question, it would be appropriate to notice a contention raised on behalf of the Revenue that the order of assessment being appealable and appellate orders in relation to assessment years 1989-90 and 1990-91 being further available to be remedied by way of second appeal before the Sales Tax Tribunal, this Court should not invoke its extraordinary jurisdiction by entertaining a writ application. As has been held by the Supreme Court as well as this Court in several cases, availability of an alternative remedy does not oust the jurisdiction of this Court under article 226 of the Constitution and this Court applies a self-imposed restriction to entertain a writ petition when an alternative remedy is available under the statute. But where the question involved is a pure question of law and does not depend upon any factual determination, this Court never hesitates to entertain the question and decide the same. Since the question involved in the present case is a pure question of law and does not depend upon any factual determination, notwithstanding an alternative remedy being available, we are inclined to entertain the writ petition and decide the question ourselves.